[1] Whether an insurer bears the duty to specify and explain the terms and conditions even if a policyholder may sufficiently anticipate the terms and conditions of the insurance without any separate explanation or is well aware of such terms and conditions (negative)

[2] The case holding that in case where the insurer set the time to commence the insurer's liability different from the general provisions of the Commercial Act, the insurer's terms and conditions are important contents of the insurance contract for which the insurer has an obligation to specify and explain specific and detailed terms and conditions, and they are general and common in the transaction, so it cannot be said that the policyholder could have sufficiently anticipated without a separate

[1] Under Article 638-3(1) of the Commercial Act and Article 3 of the Regulation of Standardized Contracts Act, when an insurer concludes an insurance contract, the insurer is obligated to provide the policyholder with specific and detailed explanation and explanation of the important contents of the insurance contract, such as the content of the insurance contract, the system of premium rates, changes in the terms and conditions of the insurance subscription, and reasons for exemption of the insurer's liability, etc. Therefore, if the insurer concludes the insurance contract in violation of such duty to specify and explain the terms and conditions, it cannot be asserted as the contents of the insurance contract. However, even if matters falling under the important contents of the insurance contract are general and common in the transaction, if the policyholder is sufficiently anticipated without any separate explanation, or if the policyholder or his agent is sufficiently aware of such contents, such terms and conditions become the content of the contract and have binding force on the parties, and therefore, the insurer does not need to separately explain the contents of the

[2] The case holding that the insurer's liability, unless otherwise agreed by the parties, set the time for commencing the insurer's liability different from the general provisions of the Commercial Act which provide that the insurer shall commence from the time of receiving the initial insurance premium, where the insurer's liability is set, the content of the terms and conditions shall be an important content of the insurance contract for which the insurer shall specify and explain specific and detailed matters, and that the content of the terms and conditions shall be general and common to the transaction, and thus, it may not

[1] Article 638-3 (1) of the Commercial Act, Article 3 of the Regulation of Standardized Contracts Act / [2] Articles 638-3 (1) and 656 of the Commercial Act, Article 3 of the Regulation of Standardized Contracts Act

[1] Supreme Court Decision 98Da4342, 43359 delivered on March 9, 199 (Gong1999Sang, 634) Supreme Court Decision 99Da5533 delivered on July 27, 2001 (Gong2001Ha, 1925), Supreme Court Decision 2003Da27054 Delivered on August 22, 2003 (Gong2003Ha, 1926), Supreme Court Decision 2004Da18903 Delivered on August 25, 2005 (Gong2005Ha, 1551)

Samsung Fire and Marine Insurance Co., Ltd. (Attorney Hong-soo, Counsel for defendant-appellant)

Defendant (Counterclaim Plaintiff)

Seoul High Court Decision 2003Na79651, 79668 delivered on May 4, 2004

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff (Counterclaim defendant).

1. On the first ground for appeal

Examining the reasoning of the judgment below in light of the records, the insurance contract of this case shall be null and void in a case where the insured is diagnosed as cancer prior to the date preceding the date of commencing liability under Article 14(3) of the terms of the insurance contract of this case, but on the other hand, Article 17(2) of the terms and conditions of this case does not stipulate that Article 14(3) of the terms and conditions of this case shall not be applied again in a case where the contract which lost its validity is restored under Article 17(2) of the terms and conditions of this case. Thus, the court below

2. On the second ground for appeal

In accordance with Article 638-3(1) of the Commercial Act and Article 3 of the Regulation of Standardized Contracts Act, when an insurer concludes an insurance contract, the insurer is obligated to specify and explain the important details of the insurance contract, such as the content of the insurance contract, the system of insurance premium rates, changes in the matters stated in the written application for the insurance, and reasons for exemption of the insurer's liability. Thus, if the insurer concludes an insurance contract in violation of such duty to specify and explain, the content of the contract cannot be asserted as the content of the insurance contract. However, even if matters falling under the important contents of the insurance contract are included in the insurance contract, if the policyholder or his agent is deemed to have sufficiently anticipated without any separate explanation as they are common and common in the transaction, or if the policyholder or his agent is sufficiently aware of the contents of the contract, such terms become the content of the contract and have binding force against the party, and therefore, the

According to the records, Article 7 (1) of the insurance clause of this case provides that "the liability of the company shall commence at 4 p.m. on the first day of the insurance period specified in the insurance policy, and shall be paid at 4 p.m. on the last day of the insurance period. However, the liability of the company for specific cancer, general cancer, or ambal cancer shall begin on the day following the day on which 90 days elapsed including the first day of the insurance period specified in the insurance policy and shall be paid at the last day, and shall be paid at the last day." Article 17 (2) of the above insurance clause provides that the above provision of Article 7 of the above insurance clause shall apply again if a invalidated contract is restored. In light of Article 656 of the Commercial Act, the insurer's liability shall commence from the time when the initial insurance premium is paid unless otherwise agreed by the parties. Article 7 of the above insurance clause provides that the insurer shall specify and explain the important contents of the insurance contract, and it shall be sufficient that the insurance contractor has a general and detailed explanation.

In the same purport, the first instance court, cited by the court below, judged that the provision of Article 7 of the above Terms and Conditions constitutes an important part of the contract, and further, it cannot be said that the policyholder had been aware of the fact that Article 7 of the above Terms and Conditions apply to the restoration of the insurance contract in this case, and therefore, the insurer should have explained the above terms and conditions at the time of the instant restoration contract

3. On the third ground for appeal

In light of the reasoning of the judgment of the court below and the records of the court of first instance cited by the court below, it is proper that the court below rejected the plaintiff (Counterclaim defendant)'s assertion that the restoration contract of this case was caused by the policyholder's fraud, and there

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff (Counterclaim defendant). It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Hong-hoon (Presiding Justice)